R v MBE - [2008] QCA 381

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBE [2008] QCA 381

PARTIES:

R
v
MBE
(appellant)

FILE NO/S:

CA No 151 of 2008
DC No 159 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

4 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2008

JUDGES:

Holmes and Muir JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction allowed.
2. Retrial ordered on all counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant convicted on five counts of rape of his de facto wife’s daughter – where inconsistencies between evidence of child complainant and evidence of two other child witnesses to whom the complainant had reported the offences – where complainant’s account was supported by evidence of complainant’s mother – whether verdict unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where s 21AW(2)(b) and (c) of the Evidence Act 1977 (Qld) provide that where a child witness’ evidence is pre-recorded, the presiding judicial officer must instruct the jury that such evidence is not of increased or decreased probative value, and is not to be given greater or lesser weight because of its being recorded – where learned primary judge directed the jury that the evidence was not to be given lesser value because of its being pre-recorded, but did not direct against giving it greater value – where learned primary judge directed the jury that the jury was not to discount the complainant’s evidence because of her age – where respondent conceded that the direction did not meet the requirements of ss 21AW(2)(b) and (c) – whether a retrial should be ordered

Evidence Act 1977 (Qld), s 21AW(2), s 93A

R v DM[2006] QCA 79, cited
R v HAB[2006] QCA 80, cited
R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179, considered
R v SAW[2006] QCA 378, cited

COUNSEL:

R A East for the appellant
D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The appellant appeals against his conviction on five counts of rape of his de facto wife’s daughter on unknown dates between 1st January 2001 and 28th February 2003. The appeal is on the grounds that the verdicts were unreasonable and that the trial judge failed to instruct the jury in accordance with s 21AW(2) of the Evidence Act 1977 (Qld).

The complainant’s evidence

The complainant child, S, was born in mid 1995, and was six or seven years old during the period covered by the charges. In 2001, she was living with the appellant and her mother in a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MBE

Details

AGLC: R v MBE [2008] QCA 381
Case: [2008] QCA 381
Decision Date: 4 December 2008

CaseChat Overview and Summary

The appellant was convicted on five counts of raping his de facto wife's daughter. The child complainant had reported the offences to two other children, whose evidence contained inconsistencies with the complainant's account. The complainant's mother supported her daughter's testimony. The appellant appealed against his conviction, arguing the verdict was unreasonable due to these inconsistencies. The appellant also contended that the learned primary judge had misdirected the jury in relation to the pre-recorded evidence of the child witnesses under sections 21AW(2)(b) and (c) of the Evidence Act 1977 (Qld). The respondent conceded that the direction did not fully comply with these statutory provisions.

The court considered whether the verdict was unreasonable and whether the misdirection warranted a retrial. In relation to the reasonableness of the verdict, the court found that the inconsistencies in the evidence of the child witnesses, coupled with the lack of corroboration, made the jury's decision suspect. The court was particularly concerned about the discrepancies between the complainant's account and the other children's testimonies. Regarding the misdirection, the court held that the primary judge's failure to fully comply with the statutory directions concerning the pre-recorded evidence was a significant error. The court concluded that the misdirection had the potential to influence the jury's assessment of the complainant's evidence unjustifiably.

The appeal was allowed, and the conviction was quashed. A retrial was ordered on all counts. The court's decision emphasised the importance of ensuring that the jury properly assesses the credibility of child witnesses and that statutory directions concerning pre-recorded evidence are accurately and fully communicated to the jury.

Orders

Orders of the court

1. Appeal against conviction allowed.

2. Retrial ordered on all counts.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v MBE [2008] QCA 381
PARTIES:	R v MBE (appellant)
FILE NO/S:	CA No 151 of 2008 DC No 159 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	4 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 2008
JUDGES:	Holmes and Muir JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction allowed. 2. Retrial ordered on all counts.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where appellant convicted on five counts of rape of his de facto wife’s daughter – where inconsistencies between evidence of child complainant and evidence of two other child witnesses to whom the complainant had reported the offences – where complainant’s account was supported by evidence of complainant’s mother – whether verdict unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where s 21AW(2)(b) and (c) of the Evidence Act 1977 (Qld) provide that where a child witness’ evidence is pre-recorded, the presiding judicial officer must instruct the jury that such evidence is not of increased or decreased probative value, and is not to be given greater or lesser weight because of its being recorded – where learned primary judge directed the jury that the evidence was not to be given lesser value because of its being pre-recorded, but did not direct against giving it greater value – where learned primary judge directed the jury that the jury was not to discount the complainant’s evidence because of her age – where respondent conceded that the direction did not meet the requirements of ss 21AW(2)(b) and (c) – whether a retrial should be ordered Evidence Act 1977 (Qld), s 21AW(2), s 93A R v DM[2006] QCA 79, cited R v HAB[2006] QCA 80, cited R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179, considered R v SAW[2006] QCA 378, cited
COUNSEL:	R A East for the appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent